Choosing Hobson's Choice

By: Benjamin G. Shatz
– Daily Journal

"Hobson's Choice" - the 1954 version, directed by David Lean - is the sort of movie that justifies the lament "they don't make 'em like this anymore." Featuring a charming story, snappy dialogue, and a talented cast (including the great Charles Laughton as the dipsomaniacal bootmaker Henry Horatio Hobson), it won the award for best British film of 1954, and deservedly so. In addition to being a touching and amusing romcom, it is a particularly fun movie for lawyers, featuring one of the most hilarious service-of-process scenes ever, and, of course, the critical out-of-court settlement that provides the dowries for the two younger daughters of the miserly and tyrannical Hobson.

But the title itself - "Hobson's Choice" - is of even greater interest to lawyers. That title derives from a turn of phrase that in turn derives from Thomas Hobson (1544-1631), who provided mail delivery between London and Cambridge and also ran an inn in Cambridge. Hobson had an impressive stable housing about 40 horses. To maximize his profits, when his horses were not engaged in pony express duties, he rented them out to those in need of a mount. He soon realized, however, that his swiftest equines were the most popular choices. To protect his better horses from overuse, he devised a strict rotation system, described in the October 1712 issue of Addison and Steele's famous periodical, The Spectator: When a customer came for a horse, the large herd in the stable made it appear that a customer would have a wide selection to choose from, yet this was not the case. Hobson would lead a customer to the stable, but then "obliged him to take the horse which stood next to the stable-door; so that every customer was alike well served according to his chance, and every horse ridden with the same justice."

This practice gave rise to the eponymous term a "Hobson's choice": a situation in which there is really no choice between various options at all. If you wanted to rent a ride from Hobson, you could only have the horse nearest the door. If you judged the horse a nag, you had the freedom, of course, to seek an animal elsewhere. Thus, a Hobson's choice is a take-it-or-leave-it proposition. A classic example is Henry Ford's quip that his customers could have a Model T in any color they wanted "so long as it is black." Henry Ford & Samuel Crowther, "My Life and Work" (1922) p. 72. A Hobson's choice, therefore, is not much of a choice at all: If you're in need of the item being offered, there is only one option.

The Oxford English Dictionary traces the first written appearance of "Hobson's choice" to 1660, and a poem in 1688 noted "Where to elect there is but one, 'Tis Hobson's choice - take that, or none."

From the 1920s until today, more than 250 California cases use the phrase. E.g., Holmes v. Railroad Commission of Cal., 197 Cal. 627 (1925), to Johnson v. Superior Court, 2016 DJDAR 10744 (Oct. 27, 2016). But, the pesky pedant asks, are courts and lawyers using the phrase correctly?

Strictly defined, a Hobson's choice is merely a take-it-or-leave-it proposition. This contrasts with several other distinct scenarios. First there is that famous cinematic godfatherly "offer you can't refuse." The connotations are quite different, with coercion not so overtly at play with a Hobson's choice, where the customer is free to refuse the only option given without fear of reprisal.

Second, a Hobson's choice is not a situation entirely devoid of choice. The crux of a Hobson's choice is not the complete absence of any choice whatsoever; instead the distinction to be drawn is that rather than a customer who is free to choose one thing or another, in a Hobson's choice scenario, the customer is free to choose one thing or nothing.

Third, a Hobson's choice is not a situation where one may (or must) choose between two options that in fact end up with equivalent (typically undesirable) outcomes. Such a no-win situation (a heads-I-win, tails-you-lose setup) is more properly termed a Morton's fork or a double bind: i.e., no matter what choice you make, you end up in the same bad place.

Fourth, a Hobson's choice is not a catch-22, which instead poses a chicken-and-egg problem of impossibility arising from circularity: to achieve desirable end A, you must first do or acquire B; but to accomplish B, you must first have A.

Finally, a Hobson's choice is not a plain old-fashioned dilemma, i.e., the choice between two different yet unpleasant options. Literary descriptions of dilemmas are legion: e.g., caught between Scylla and Charybdis, stuck between a rock and hard place; between the devil and the deep blue sea. Sticking with the literary and cinematic, a particularly agonizing dilemma is sometimes called a Sophie's choice, i.e., being forced to make a terrible choice between two (or more) difficult options, which have enormous negative consequences. (More technically, a Sophie's choice is the forced selection of one person or thing that will result in the death or destruction of the person or thing not chosen.) And from chess, there is zugzwang: a situation where one must make a move, but one prefers not to have to do so, because any move will incur a harm.

Having now scrupulously delineated these various scenarios, note that in common parlance and legal writing, the walls come tumbling down. The meaning of Hobson's choice has expanded - as the lexicographers (e.g., Henry Fowler) are wont to phrase it - by slipshod extension. See Scott Moïse, "Dear Scrivener" (Mar. 2011) 22 S.C. Law 44-46 (noting that catch-22, Hobson's choice, Sophie's choice, and Morton's fork "have different meanings, although some people treat them as if they are interchangeable"); State ex rel. Dousay v. State of Louisiana, 108 So.3d 1169, n.1 (La. 2013) (Hughes, J., dissenting). Overextending a word beyond its proper meaning debases the original and creates needless synonyms. To be sure, some careful writers honor the borders. See Hermlein v. K-V Pharmaceutical Co., 54 A.3d 1093, 1099 n.19 (Del.Ch. 2012) (distinguishing between a Hobson's choice, a Morton's fork and a catch-22); Lauderdale Lakes Management Dist. v. Walworth County, 332 Wis.2d 807, ¶13, n.2 (Wis. App. 2011) (distinguishing between a Hobson's choice and a dilemma); Herron v. Commonwealth of Virginia, 55 Va. App. 691, 696 n.2, 704 (2010) ("Appellant was not presented with a 'Hobson's choice' but rather with a 'dilemma'"); Schmidt v. State of Wyoming, 738 P.2d 1105, 1106 n.1 (Wyo. 1987) ("Appellant does not understand the meaning of the term 'Hobson's choice,' and has corrupted a useful figure of speech." Citing "William Safire on Language," pp. 132-33.). But more often than not, such technical niceties are left to snoots, or worse.

Indeed, even reigning snoot-in-chief Bryan Garner accepts that Hobson's choice is an "ever-growing cliché" that "has loosened its etymological tether," such that the prevailing sense in American English is that of having two bad choices. Garner's "Modern American Usage" (3d ed. 2009) p. 423. Only "purists" resist this change in meaning, he asserts.

Citing to Webster's, our California Supreme Court has noted that "A Hobson's choice is defined as, among other things, 'the necessity of accepting one of two or more equally objectionable things.' " Copley Press, Inc. v. Superior Court, 39 Cal. 4th 1272, 1298 n.19 (2006); see id. at 1311 ("A hobson's choice is defined as either 'an apparent freedom to take or reject something offered when in actual fact no such freedom exists' or 'the necessity of accepting one of two equally objectionable things.'") (Werdeger, J., dissenting). And no less an authority than the U.S. Supreme Court has also used Hobson's choice in about 50 cases, usually simply to mean a dilemma. E.g., Simmons v. U.S., 390 U.S. 377, 391 (1968).

The fact that in most legal writing Hobson's choice has come to have several meanings beyond its origins (i.e., a free choice in which only one option is available) poses a choice for writers: Should one use the term expansively to refer to various scenarios, including a mere dilemma? Or should authors select arguably more precise terms of art or idioms? This may be a tough question, but it is not a Hobson's choice. Each writer must calibrate his or her own level of persnicketiness. But understanding the relevant background at least allows for an educated choice. So, as the hoary Grail Knight advised, "Choose wisely."



pursuant to New York DR 2-101(f)

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